(HC) Parvin v. Fox, No. 2:2015cv02461 - Document 5 (E.D. Cal. 2015)

Court Description: ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/8/15 ORDERING that Petitioners motion to proceed in forma pauperis, ECF No. 2 , is GRANTED. Petitioners motion for appointment of counsel, ECF No. 3 , is DENIED w ithout prejudice. The Clerk of Court is directed to randomly assign a district judge to this action. It is RECOMMENDED that that this action be dismissed without prejudice. Randomly assigned and referred to Judge Kimberly J.Mueller; Objections to F&R due within 21 days.(Dillon, M)

Download PDF
(HC) Parvin v. Fox Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN ALAN PARVIN, 12 13 14 15 16 No. 2:15-cv-2461 AC P Petitioner, v. ORDER and ROBERT FOX, Warden, California Medical Facility, FINDINGS AND RECOMMENDATIONS Respondent. 17 18 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. This action is referred to the undersigned United States Magistrate 21 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). 22 Examination of the in forma pauperis affidavit demonstrates that petitioner is unable to 23 afford the costs of suit. Accordingly, his request for leave to proceed in forma pauperis is 24 granted. See 28 U.S.C. § 1915(a). 25 The court’s records reveal that petitioner has previously filed an application for a writ of 26 habeas corpus attacking the same conviction and sentence challenged in this case. See Parvin v. 27 Cate, Case No. 2:09-cv-02198 JFM P. The previous application was filed on August 10, 2009, 28 and dismissed as untimely on March 1, 2010. Thereafter, the United States Court of Appeals for 1 Dockets.Justia.com 1 2 the Ninth Circuit denied petitioner’s request for a certificate of appealability. Petitioner has recently exhausted allegedly new claims in the state courts. Nevertheless, 3 before petitioner can proceed with the instant application, he must move in the Ninth Circuit 4 Court of Appeals for an order authorizing the district court to consider the application. See 28 5 U.S.C. § 2244(b)(3). Therefore, petitioner’s current application must be dismissed without 6 prejudice to its re-filing upon authorization from the Court of Appeals. 7 Petitioner also requests the appointment of counsel in a boiler-plate motion. There is no 8 absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 9 453, 460 (9th Cir. 1996). Although appointment may be authorized under 18 U.S.C. § 3006A “if 10 the interests of justice so require,” Rule 8(c), Fed. R. Governing § 2254 Cases, this requirement is 11 not met at the present time. Therefore, petitioner’s request for appointment of counsel is denied. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Petitioner’s motion to proceed in forma pauperis, ECF No. 2, is granted. 14 2. Petitioner’s motion for appointment of counsel, ECF No. 3, is denied without 15 prejudice. 16 3. The Clerk of Court is directed to randomly assign a district judge to this action. 17 In addition, IT IS HEREBY RECOMMENDED that that this action be dismissed without 18 19 prejudice. These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 21 days after being served with these findings and recommendations, petitioner may file written 22 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 24 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 25 F.2d 1153 (9th Cir. 1991). 26 DATED: December 8, 2015 27 28 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.